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Google To Be Sued in UK For Trademark-Linked Ads
nuke-alwin writes "Channel 4 news in the UK is reporting that Google will be sued by Lastminute.com for the way it sells advertising. Adverts from competitors will now be displayed when searching for some trademarks. Google says consumers will benefit. Some trademarks become so familiar that all similar products are known by the trademark name: Coke and Hoover, for example. I think searching for these kinds of words should allow competitors to advertise their similar products."
Trademarks are to identify the source of goods. Trademarks are not to protect your good from competition. Nor are the copyrights to protect your trademark from use by others outside of identifying the source of goods.
paintball
boo fucking hoo.
If you mod me down, I will become more powerful than you can imagine....
Oh, Google's being sued. I thought Google was suing the UK. For $100 billion canadian...I've got to stop reading this at five in the morning. Don't ask me how many times it took me to type that sentence. Please.
This is obviously going to create a feeding frenzy for googles advertising sales.
I do however think that it may affect their adword partners, who may be hesitent to place competitors adverts on their sites.
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I've been reading the Wikipedia on genericized trademarks (off-topic: shouldn't it be "generized"?) and it doesn't give too much information about the process of certifying the genericity of a trademark: it seems to happen per se if the trademark owner doesn't take steps to avoid genericization, and sometimes even if steps are taken. Would anybody please point me to a better reference?
"Known" in informal usage is one thing. Actually marketed that way is quite another. Would you expect to see Pepsi brand "coke" or Dyson brand "hoovers" being advertised?
If you allow your trademark to become a generic term, then eventually you may lose the protection it provides. Trademarks are defend-it-or-lose-it. I say may lose because AFAIK this particular principle, of using a trademarked term as a generic term in a commercial search, is a new legal area. So at least we know that a lot of lawyers will make a lot of money out of it. Which is nice.
If you were blocking sigs, you wouldn't have to read this.
They should deny Google in their robots.txt then they wouldn't be on the same search page as their competition.
The pages at Google.com are google's property so I fail to see how this lawsuit can go anywhere.
~Dan
An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
If I put "lastminute.com" into Google, they've got about the top 6 links in the search page. The URL of their competitors is clearly shown elsewhere.
Are lastminute.com in trouble? Have they got SCO-level management fighting against the reality than anyone can set up what they do (and a lot of their site isn't "last minute" anyway).
You know what's funny? The most likely impact of this move is that more people will link to this slashdot article and drive this up the main index, to the detriment of them.
Google is still an optional service. If you don't like how they deal with you, don't use them.
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
That caught me off guard, too. I didn't know that building dams is such a competitive business.
"Coke.. okay, maybe. Hoover? I never hear anyone say, "go get the Hoover."
I've heard the term 'hoovering' used to describe vacuuming. I think over in Englad it was more widely used that way. (That is if TV has actually taught me something.)
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
How is this example any different: I walk into the store looking for a Pepsi. I ask the clerk, "where is it?", she says, "It's over there next to the big Coke sign.
Think about that for a second.
Now, lets take it step further. Lets say I make a searchable yellow pages. It quite literally searches scans of the yellow pages and pulls up the pages that might have what you are looking for. You're going to see ads for competitors when you use trademarked words.
Of course though, this is in the UK, whose advertising laws are MUCH different than in the States. Google is likely to lose there.
If that were the result, the winner would get a delisting from Google. That's one of the many reasons I'm never going to be a CEO.
Burn Hollywood Burn
Yep, it's pretty standard usage in England - I hoover with my Dyson!
You know the general mantra of people who support advertisements (for whatever interest they have)? They say advertisements increase competition and are, therefore, ultimately beneficial to the consumers. Well, I think Google's way is a great implementation of this principle.
Google: keep it up, I'm rooting for you.
lastminute.com and Auto Trader: FY.
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
Yeh, us English use Hoover as a generic term. I have heard people say 'go get the Hoover'!
Sorry! Kleenex lost it's trademark ability because it allowed everyone to call their tissues kleenex's also.
Same with xerox. And aspirin. Jell-o. And even "google" to mean generally an online search.
That is why when you have a powerful trademark, you sue anyone who comes close to your territory like this - even if you might lose. If you don't, you dilute your trademark and possibly lose your trademark (at least partially) and have it become genericized.
Now Google is facilitating genericizing of trademarks.
I would be *pissed* and would probably sue Google to STOP doing that.
Anyone creating an adwords campaign would be required to click a checkbox "This keyword is a trademark of another company". The ads would then have a small label saying they are from a competitor. No one would be able to claim that customers are being deceived in any way.
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
I think "hoover" tends to be quite common in some areas of the UK, but primarily amongst the older generation now.
You're quite right about "Xerox" and "Kleenex" though. I'd throw in to the list "Band Aid", "Post It" and "Biro".
It all depends on where you live though - different countries, and even different locations within countries are more or less likely to use these. For example, in Japan there's "almost" a verb for copying ("xeroxing") based on the name Ricoh (roughly "Ricohpying"). Or in some less developed countries, the world "Nescafe" is a synonym for "coffee".
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That's not the point. The point is the phone book calls them plumbers; it doesn't list them under a brand name (like whatever the equivalent is for Tesco's in plumbing.) Tesco would have no case if a Google search for "supermarkets" threw up ads for non-Tesco supermarkets. What they object to is a customer searching for "Tesco" and being advertised something else. Whether their objection is valid is a matter of debate but there's no analogy with the phone book.
"Google say that consumers will benefit."
"I think that searching for these kind of words should allow competitors to advertise..."
It doesn't matter what Google says, nor what this ignorant fool thinks, it depends on the law of the land. If certain competitive advertising is illegal (it may be in the UK, I'm not sure, but it is illegal in many countries), then that's the law.
What happened to "Do no evil?"
The anon parent is absolutely right. LastMinute, Tesco et al probably have a duty to their shareholders to stop any sort of misuse of their trademark.
It's not all that easy to lose a trademark -- Google is still in place, as is Xerox -- but the risk is there and it has happened, cf. the other examples above. In this case, if Google treats a search for "Tesco" as a search for "supermarket", and Tesco doesn't protest, Tesco is probably implicitly agreeing that their name is a generic name for a supermarket: at least, a competitor could argue in that way.
In Russian, "kseroks" is vastly more popular as a general term than "kopir." There is a verb "kserit'" which means "to copy on a copier" :-) There is even an adjective "kserokopirovalny" meaning "related to copying on a copier."
Try the English2American dictionary - 'h' section :
http://english2american.com/dictionary/h.html
Max.
http://dictionary.reference.com/browse/VAX
The "Similar pages" link already shows you the competitors and has done so for about 10 years now. Why hasn't anyone sued google for that?
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
But again, that's not what google is doing. It is showing in the main results the 'real' matches (just like a directory would do) such as Tesco.com, and then in the advertisements, other competitors. I see no problem with this...
Ask for coffee and you get a drink made from three in one pre mixed powder (coffee, sugar, creamer).
In other words something almost but not quite entirely unlike coffee.
http://michaelsmith.id.au
http://michaelsmith.id.au
If they win against Google, I wonder how much farther they will go?
For example, if I go to Amazon and search for some specific, branded, product, Amazon includes on that product's page a list of products that people shopping for that product bought. These are often competing products. Will the trademark owners object to this?
I think I agree.
Max.
If you display AdWords on your site, you can still block certain "keywords" from appearing, or certain sites altogether. This is companies bitching at Google for displaying competitor ads in search results on Google's site. Displaying a link to a competitor when running AdWords on your website was always a concern (considering the whole technology behind AdWords to begin with), so Google has always given you the option of blocking certain content from appearing in ads that are displayed on your site. I find it ridiculous that companies would think that they control the display of competitor ads on a search engine result that doesn't even originate with them.
I have never heard anyone use iPod, Kleenex or Xerox generically. On the other hand, saying anything but "I'm hoovering the carpet" to refer to hoovering the carpet is odd to me. If you say "vacuuming" it sounds like the stilted language used in TV adverts to avoid mentioning trademarks. No one would actually say it. The same goes for "cola" instead of the everyday "coke".
See? Not everyone is from your neck of the woods.
In Aussie land only the latter three (Band Aid, Post It and Biro) have been generecised. I know of no one who actually uses the term Xerox or Kleenex to refer to photocopiers and facial tissues in general.
If Google responds with "We're sorry your are unhappy with our list of your company, we will of course remove all references/links to your company from our listings. And BTW, for now on the results listing your competitors were not matched by using your trademark, but rather by data about what links people clicked on in the past after searching for a specific string."
Personally, I do think it is wrong to bombard someone searching for a JohnWidget with SallyImitation Ads. Phrased another way, "If you don't want to lose customers, you'll pay us to display your ads instead." There are a lot of examples of this same pattern. Like when the phone company charges you extra to not list and distribute you number to all the telemarketers. Like if you don't pay your "protection" money... Well you get the point.
It's not a copyright issue, but rather one of principal. It has become an all too common, and too frequently accepted practice to push people away from what they wanted based on revenue (under the guise of 'for their benefit').
Businesses aren't to blame. The herds of mindless drones that not only don't think for themselves, but accept this tactic are to blame. That's why businesses do it, because it works. Consider this the next time you try to get a drink at a drive-thru and have to repeat that you only want a drink five times while they try to sell you their entire menu.
Since when is it any random person's right for google to be an accurate and/or useful search engine. Some thing just get taken for grated these days. Even if they are paying for advertising, the exact implementation of search probably wasn't included in the contract. These idiots can go fall in a hole.
...I don't pay attention to ads anyway. Excuse me, I'm getting a tense, nervous headache.
[drinks Coke from a classic bottle, holding the label to the camera] *contented sigh* [pops an Anadin] *instant pain relief face*
Better. Oh. Time to take the kids shopping. L8r.
[grabs basketball, pulls on the Nike's making sure not to obscure the cameras' view of the swoosh]...
Operation Guillotine is in effect.
But I agree in part. If you search for the term 'Coke' and 'Pepsi' comes in second in the advertiser list, what does that mean? It means Pepsi is benefiting from the Coke trademark. They are in essence advertising their product using the trademark. Maybe google isn't the one to go after though, maybe it would be Pepsi for paying to advertise their product using the Coke brand name. I see no problem if Google returns Pepsi.com anywhere in the search results (even on top).
Think about it this way. Would it be OK for Adidas to take a full page ad in the newspaper with 'Nike' in big letters and "New Adidas store opening Saturday at 3475 Greenwood Ave."?
But the question is, will a search for google, or googling have ads for other search engines?
In ireland and the UK 'xerox' definitly refers to the brand. We have 'photocopying' for the verb.
Interestingly, google wasn't so happy when "google" made the Merriam-Webster dictionary as a verb. I think it's going to be interesting to see what their response to this will be.
Gentlemen, you can't fight in here! This is the War Room.
...except a VAX 11/730. (I actually saw one in person back in my college days. It was a couple of half-height cabinets in a computer engineering lab.)
#naabhaprzrag, #sverubfr-000, #agi-fcbafberq, negvpyr[pynff*=' negvpyr-ary-'] { qvfcynl: abar !vzcbegnag; }
aspirin.
Same here (Romania).
We say "to xerox something".
Likewise, we use "adidas" for any sneakers, including constructs like "I bought some Puma adidas"
The intent behind trademarks is consumer protection, not to give companies monopoly rights on a name. The only responsibility you have when using a trademark is that you don't misrepresent the origin of goods.
So, advertisting your product in response to a search for a competitor's trademark is in the public interest and falls within the intent of trademark law, as long as you don't misrepresent yourself as the trademark holder.
It's funny, but I've never once seen a Biro-brand biro. (On the other hand, I don't even know whether "Xerox" how pronounced, and Kleenex is just a brand name. "Glad Wrap", though, is one of many brand names I use generically all the time, many without realising they're meant to be brand names.)
Look out!
My understanding about trademarks comes from u.S. law. Is there something about U.K. law that's different?
There _may_ be some dillution aspect to this, however, if Google doesn't mix and match brand names in search results, I really don't see a problem here.
The best analogy I can think of is in a store.
If I asked a shop keeper, do you carry brand X, and he responded, "No, but we do carry brand Y," that's is clearly not infringement.
If the shop keeper says, "Yes we do have brand X over here, but have you considered brand Y? Many people find it to be a better value." This is also _not_ trademark infringement, even if it's his financial interest to recommend brand Y (e.g. better margins or whatever).
I don't really see much of a distinction between the shop keeper analogy and Google search terms. The only thing is that they sell the rights to put ads up based on a word which the trademark owner claims to own. But since no reasonable person would be confused by this and believe that Google owned the trademark, it's hard to imagine how Google could be sued.
Actually "Band Aid" as a generic term is mostly from Australia/New Zealand. I'm pretty sure "Xerox" is mostly America and non-English speaking countries that have adopted it (see posts above from Russian, Polish and Romanian people)
Also, another one that another replier (zsau) pointed out and I somehow forgot about is "Glad Wrap" - very common in New Zealand at least, and I believe elsewhere also.
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Ah yep - forgot about "Glad Wrap" - thanks for reminding me of that one.
And for reference, "Xerox" is pronounced something like "Zeroks".
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Google can probably avoid a lot of this controversy by actually just identifying the results:
/trademarks.txt file on the servers.
[official site] Tesco Supermarkets
[other site] Cheaper than Tesco!
This could work based on domain names, data mining, and/or a
Google could also allow personalization, letting people choose whether to see the official/competitor's sites and in what order, as well as letting users block lists of trademarks they never want to see (e.g., Coca Cola, Nike, Microsoft, whatever).
So will Google return results for other search engines when a user submits "google"?
Don't forget "Dumpster".
As for LastMinute Travel being common? Well, I can see it being ambiguous, at the least.
If I work in CityA, and my boss says to me, "I need you in CityB by tomorrow morning to meet with ClientX." I might be tempted to search for "last minute airfare" or similar, simply because "last minute" is a way of saying that something is almost out of time.
For people who regularly have to book flights and hotels less than a day in advance, there very well may be a common euphemism such as a "last minute travel plan" instead of "emergency travel plan" or similarly "dark" word ('emergency', as opposed to 'last minute').
I'm not sure how clear I am making myself, but simply put, "last minute" is a relatively common phrase in the States, and if it is similarly common in the UK, I doubt LastMinute.com will be able to do much in court to give themselves a victory.
Really, that's why companies shouldn't use common words or phrases for their names and trademarks, nor should they use overly-simply words or phrases.
Calling a sword by a pretty name is no more than adding perfume to poison.
Hmmm, Google should practice what they preach if they want to dodge this bullet. Google is a generic search term, yet when you Google google you don't find any of the competing search engines in the top 200 finds (more perhaps, but I stopped looking). How's that for giving consumer choices and promoting competition?
So, are they going to provide a link to Yahoo when someone searches for "Google", one wonders?
Best wishes,
Bob
Actually, I'm not familiar with that one, so I guess it's something from outside of my experience (US only perhaps?). But okay, if it's common, then sure! I guess it may be the US equivalent of "Collex" in Australian English, which is just the same (a kind of large outdoor wheeled rubbish bin - "Collex" is also a brand name that gets used to refer to ANY large outdoor wheeled rubbish bins).
I'm not sure how clear I am making myself, but simply put, "last minute" is a relatively common phrase in the States, and if it is similarly common in the UK, I doubt LastMinute.com will be able to do much in court to give themselves a victory.We're shocking close to being back on topic here ;) But don't worry, you were perfectly clear (to me at least)
You're absolutely right though - in pretty much the entire English speaking world as far as I know, "last minute" has the exact meaning that you're describing, and so it would be quite reasonable for people to Google for "last minute airfare" or similar, without any expectation of getting a particular company.
Really, that's why companies shouldn't use common words or phrases for their names and trademarks, nor should they use overly-simply words or phrases.Actually, I'd disagree with you there. I think they have no right to complain and certainly no right to bring a legal suit over it, but the choice of name isn't all that bad... they probably chose it specifically because it is a common use, and if someone does a web based search for "last minute", they'll be what is found. As stated though, it's RIDICULOUS to expect any kind of protection of this name though, as it is a common phrase.
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The phonebook analogy could work:
... JohnThomas on 0022-555-8974").
You look up "Tesco" in business pages. Alongside is an ad for "Sainsburys". No harm there in my book. But then that's partially because we know that Sainsburys is different.
How about if the company was called "PeterMark" (ahem, measuring services). Next to it an ad says "looking for measuring services try
Is that OK. I think so, the "PeterMark" trademark owner* would probably be a bit pissed however.
---
* I've assumed the name is distinctive in the field and not descriptive and so is deemed to warrant a RTM.
Glad Wrap, I'm guessing is what I call cling-film (not necessarily "Cling Film"). Bit easier than "plastic food wrap".
Xerox, I hear, but use "photocopy". Back in the day it used to be a "banda" which was a brand-name spirit duplicator.
"zipper" is perhaps the best example of a lost trademark.
Xerox vigorously defends the "Xerox"® trademark, to little avail. Ironically, the growing ubiquity of copiers and printers seems (anecdotally) to be reducing the use of 'xerox' as a verb and an increasing the use of 'copy'. ('photocopy' is too long to catch on, I guess)
Hoover is very generic in this (English) house. We've never had a Hoover-brand vacuum cleaner, but out vacuum cleaner is still 'the hoover'.
The word 'coke' is more interesting though. At any English pub, 'coke' is recognized as a generic term for both Coca-Cola and Pepsi, but things were different on a family holiday in India back in 1995/96 (over the new year). My dad said he asked for a 'coke', but the bartender didn't know what he meant, he then restated that he wanted a 'Coca-Cola', at which point the bartender knew what he wanted. It actually seemed there and then that 'Coca-Cola' was more generic than 'coke', no idea if it's still like that though.
Imagine if a supermarket put up a big advertising board at the front of the store with pepsi branding and trademarks, but underneath it was just coke cans for sale, with the whole thing paid for by coke. Pepsi would be pissed at coke and the supermarket, and probably institute a trademark lawsuit.
A much better analogy would be if a customer walked into a supermarket with no advertising out front and asked an employee for Pepsi. The employee directed them toward the soft drink isle where there was a large ad display for Coke (paid for by Coke) and further down the isle is the Pepsi which the customer wanted in the first place.
This scenario is much closer to the Google issue with the excetion that Google isn't a store and doesn't even get a cut of the Pepsi sold; only the Coke. Now while I personally think Google should be able to link whatever the hell they want; it's their website but they may be guilty of trademark infringement if they did something like Pepsi but without the slashcode to prevent rickrolling. This would at least be something.
The fact that they aren't doing anything illegal or done before in other venues (see above) tells me that Pepsi can go pound sand, and by Pepsi, I mean the vendors suing, as they have brick and mortar precedent in Google's favor.
I went to JB Hifi and asked for which iPod (trademarked) is the best. Does it have FM Radio? Are they best value?
Is it illegal to direct the consumer to an iRiver or Samsung player?
What if iRiver or Samsung was giving the salesman kick-backs for directing you to their players? That's closer to the scenario with Google.
If Google tried anything as blatantly coercive - retaliatory - as this they would open to themselve to uo lawsuits and likely criminal prosecution from every direction.
And BTW, for now on the results listing your competitors were not matched by using your trademark, but rather by data about what links people clicked on in the past after searching for a specific string."
Google would have a hard time explaining what links the searcher is likely to click on if a search for a trademarked product returns little more than prominently placed adds for its competitors.
Well, it's kind of hard to organize like this with the printed page. Too many combinations of "searches" for specific trade marked names. However, with dynamically generated content backed by a database it's a breeze.
I bet if the yellowpages had an online site, they'd do the exact same thing.....oh wait, they do: http://www.yellowpages.com/nationwide/name_search/wal-mart?search_mode=all&search_terms=wal+mart
Look at the right side of the page, a long list of "Related Businesses".
It does! Even before the first proper result it says: "Try your search on Yahoo, Ask, AllTheWeb, Live, Lycos, Technorati, Feedster, Wikipedia, Bloglines, Altavista"
Google doesn't mean 'search the internet'.
Google means 'Use Google to search the internet'.
Hoover, in the UK, means 'vacuum'.
But even setting that aside for a minute, you're not making an equal comparison.
Going to Google and searching for Google is, at the start, a stupid example, because you're already there. You're USING the very product you're searching for! Try finding an ad for USA Today in the Wall Street Journal. Or see how many NBC television shows are advertised during the Super Bowl on Fox.
A better analogy would be I go to Best Buy, and I ask to look at a Kenmore. They say 'Hey, look at this Whirlpool instead!' Nothing wrong with that.
Google runs advertising. They're not going to run advertising for competitors. But we should expect that they are going to run advertising for other companies, and even expect that, if you pay them to, if you come to Google looking for a particular product, they might also refer you to a competing product. That's the whole point of advertising!
paintball
For anyone else who's never heard of a "Biro", it's apparently a ballpoint pen. The word is never used in the US. BIC might be used as a generic term for disposable pens, but it could just as likely be referring to cigarette lighters.
The other trademarks are used generically in the US as well, though. Although as others have pointed out Xerox is losing popularity and around here many people do use "tissue".
It is a customer benefit. If I want to book a cheap flight I might google for lastminute, but I'd be very happy if along with the results for lastminute google gave me several alternatives - they may be cheaper or better in some other way.
The only reason I search for lastminute is because they're the one I've heard of. So yes, lastminute's competitors are benefiting from their trademark, but so are the public. In fact lastminute is a good example of this because their actual service is so generic, there are many other sites that do exactly the same thing. The only difference between them is that lastminute had a lot of funding and spent a lot on advertising. If that money was mispent because the public end up finding out about their competitors too then tough luck!
You can't take the sky from me...
You can't take the sky from me...
Seriously. When someone searches for Tesco, and they are looking for Tesco (a safe assumption), they'll click the SEARCH RESULT that matches, not the AD for Safeway. Tesco shouldn't want people clicking their ads (and if theirs is the only ad, it is easier to confuse with a search result) - because they are then paying Google for hits that they were already going to get.
Yeah, I worked out how to pronounce the X's in "Xerox"---same as any word. It's the E that confuses me. Is it short (head), long (heed) or a short i like in "pretty"/"zero"?
Look out!
Screw you, it was a good point. Now I'm going to go have a cold glass of refreshing Hoover and then go Coke the living room.
I am government man, come from the government. The government has sent me. -- G.I.R.
Short, like "zero" (or also like "Xerography", where the name comes from)
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The first link one the page (admittedly in the ad results) is "Equifax - Official Site" so I click on that only to get redirected to equifaxproducts.com.
If someone did that to my business, with an advertisement posing as my official website, only to get redirected to a competitor's, i'd be furious. This practice in no way benefits the customer.
Once again the real winners will be the lawyers - particularly any legal firm called "The Lawyers" who can also now apparently sue Google themselves for misuse of trademark.
I don't know about you guys but I'm going back to paper...
-- "Can't sleep, clowns will eat me!"